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Apkarian v. McAllister

United States District Court, W.D. Wisconsin

January 28, 2019




         Plaintiff Quentin Apkarian, appearing pro se, alleges that while he was housed at Lincoln Hills School, state officials violated his constitutional rights by physically and sexually abusing him when they responded to a fight and failing to provide him with follow-up medical care, and that that state and county officials failed to take action to stop the pattern of abuse at the facility.

         The state defendants filed a motion for summary judgment on the ground that Apkarian did not exhaust his administrative remedies at the Lincoln Hills School regarding his claims. Dkt. 54. See 42 U.S.C. § 1997e(a) (“No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.”).[1] The parties' briefing revealed a dispute of material fact: defendants say that Apkarian never filed a grievance about the September 2014 incident supporting Apkarian's claims. Apkarian said that he reached out to staff, wrote “multiple” grievances about the events, and contacted defendants Ourada and Westerhaus to report the abuse after he didn't hear back about his grievances.

         On January 22, 2019, I held a factfinding hearing under Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008), to resolve the factual dispute. Apkarian testified on his own behalf. Apkarian also called Lamar Smalls, who was at Lincoln Hills during the September 2014 incident and was Apkarian's cellmate for periods before and after the incident.

         Apkarian says that in the immediate aftermath of the incident, he was placed in segregation and was not allowed grievance forms. After he was released from segregation in late September 2018, he filled out a grievance form and gave it to defendant Doug Curtis, who never gave it back to him. He says that he retaliated against Curtis by filing several “childish” or “unnecessary” grievances in November 2014 about Curtis's behavior. He ultimately filed several grievances about the September 14 incident, perhaps as many as eight, either by handing them to officers or by placing them in a locked grievance box. But he never heard back about any of them. He says that he wrote letters to defendant supervisory officials John Ourada and Paul Westerhaus, but both of them failed to help him. Westerhaus wrote back stating that if Apkarian continued to threaten legal action for false allegations, he would be punished. Ourada pulled Apkarian aside and said the same thing.

         Apkarian does not have copies of the grievance he says that he filed or of the letter that he says he received from Westerhaus. But nonetheless, on its face, I found Apkarian's Westerhouse, No. 08-CV-552-SLC, 2009 WL 961132 (W.D. Wis. Apr. 8, 2009) (applying testimony to be credible. His story is plausible and lacked meaningful inconsistencies. Also, given his clear longstanding problems with what he perceived as patterns of abuse at Lincoln Hills, it is reasonable to infer that Apkarian would have complained about his alleged serious mistreatment in September 2014, particularly given that it is undisputed that he complained about more minor incidents.

         Apkarian's testimony is at least partially corroborated by Lamar Smalls, whose testimony I also found to be credible. Smalls says that Apkarian had long been concerned about abuse at Lincoln Hills, going so far as to slip Westerhaus a letter about problems at Lincoln Hills shortly before the September 2014 incident, at the at the facility's “summer games.” Smalls was not Apkarian's cellmate in the immediate aftermath of the incident, but in December 2014, he saw Apkarian write grievances about the abuse, and Apkarian would ask Smalls how to spell various facility officials' names, which made it clear that he was writing about the incident. He also said that guards would often tear up grievances given directly to them, and supervisors would not respond to grievances placed in the locked box. He says that he saw Ourada threaten Apkarian with punishment for writing false allegations, and that he saw Apkarian write to Westerhaus.

         On cross-examination, counsel for defendants tried but failed to show inconsistencies in Apkarian's testimony. Counsel suggested that because the “summer games” letter to Westerhaus predated the September 2014 incident, it could not have served as Apkarian's letter to Westerhaus complaining about the lack of progress on his grievances. That is indisputably true, but Apkarian says that he also sent Westerhaus a letter directly about the September 2014 incident. Counsel says that in supporting his request for the issuance of writs for the appearance of witnesses at the hearing, Apkarian left out that Smalls saw him write to Westerhaus. But Apkarian replied that he did not include everything that each proposed witness knew, which is a perfectly reasonable response. Counsel suggests that Apkarian failed to mention the abuse at his disciplinary hearing regarding the fight that precipitated the events. But Apkarian says that he indeed mentioned the abuse but that it was not recorded in the disciplinary record. Omission of the abuse allegations would not be surprising, because the alleged abuse is irrelevant to the question whether Apkarian should have been disciplined for the fight.

         Because exhaustion is an affirmative defense, defendants bear the burden of establishing that Apkarian failed to exhaust his available remedies. Jones v. Bock, 549 U.S. 199, 216 (2007). Had I found Apkarian's testimony to be incredible, I would have ended the inquiry there. But Apkarian's and Smalls's testimony hung together and presented a plausible series of events. This leaves defendants with the difficult task of proving a negative: that Apkarian did not file the grievances that he says he did. I conclude that they failed to make that showing.

         Defendants attempted to show Apkarian's failure to exhaust by presenting evidence about the Lincoln Hills grievance policy and the facility record of youth grievances. The 2014 grievance log showed two sets of grievances from Apkarian, but no grievance concerning the September 2014 incident. Defendants presented testimony by current Lincoln Hills Superintendent Jason Benzel and current Deputy Superintendent Lori McAllister.

         As superintendent, Benzel has access to the historical grievance files at Lincoln Hills. He presented the 2014 grievance log showing no incident-related grievance by Apkarian, and he asserted that the log was a complete list of the grievances filed that year. His testimony is compromised by the fact that he didn't work at Lincoln Hills in 2014, so he cannot really say how grievances were processed at that time. But even assuming that in 2014 things worked exactly the same way as Benzel describes them working now, the evidence defendants present does not instill confidence that every single grievance made it onto the log.

         Benzel says that Lincoln Hills officials followed their policy 7.02 in handling grievances. See Dkt. 73-1. That policy says that before filing a grievance, a youth must first discuss the problem with a social worker or youth counselor (what I take to be Lincoln Hills' version of correctional officers). If that attempt at resolution fails, the youth files a formal grievance and submits it in a sealed envelope to a locked mailbox for a complaint mediator. The mediator or supervising youth counselor places the grievances in the superintendent's locked mailbox to be date stamped and numbered. The mediator attempts to informally resolve the issue with the youth, and if that fails, the mediator conducts a formal investigation and issues a decision that can then be appealed.

         Or, if the grievance concerns serious matters like retaliation or abuse, the grievance can be made “directly” to the superintendent instead of the mediator. Id. at 1. It is unclear what “directly” means here. It could mean that the youth bypasses the mediator's involvement, or it could mean that the youth also bypasses speaking to a social worker or youth counselor before submitting a written grievance.[2] The parties did not explain this provision at the hearing. If the latter option is how the system is supposed to work, that information was not relayed to the youths.

         McAllister explained that youths were not allowed to see policy 7.02. Instead, they were given a summarized version of the policy in their handbooks. See Dkt. 73-5, at 10.[3] It is an admittedly difficult task to break down regulatory language into a format understandable to teenagers, many of whom are not up to their grade level in reading, but the handbook version has material gaps in information that suggests that youths did not know precisely how the grievance system was supposed to work. The handbook version says that before filing a grievance, the ...

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